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2024 DIGILAW 704 (MP)

Shabbir Bhai Palanpurwala v. State of M. P.

2024-11-12

SUBODH ABHYANKAR

body2024
ORDER 1. Heard finally, with the consent of the parties. 2. This petition has been filed by the petitioners under section 482 of Cr.P.C. for quashing the order of cognizance dated 10.2.2022 passed in Case No.UNCR No.62 of 2020 by Judicial Magistrate First Class, Ujjain as also the subsequent proceedings in the form of case No.RCT 217 of 2022 under sections 420, 467, 468 read with section 34 of IPC pending in the Court of J.M.F.C., Ujjain. Brief Facts: 3. In brief, the facts of the case are that a private complaint dated 13.2.2019 has been filed by Shabbir Hussain and Hakimuddin respondent Nos.2 and 3herein before the Judicial Magistrate First Class, Ujjain alleging commission of offence under sections 420, 403, 406, 467, 468, 471, 34, 120(b), 506, 323 and 294 of IPC by Shabbir and Shaikh Mustafa (present petitioners), as also against Mohsin, Khuzaima and Ishak. 4. It was alleged that both the parties are of the same community, and the disputed property, situated at 3/1237 (New No.36) at Mohalla Kamari Gali No.1, Chhota Teliwada Gali, Ujjain was owned and possessed by Mazar-e-Nazmi, which is a registered Waqf at Serial No.32 with Waqf Board, Bhopal. The case against the petitioners is that petitioner No.1 Shabbir Bhai Palanpurwala, and co-accused Mohsin told the respondent Nos. 2 and 3 that for the sale of the said building, petitioner No.2 has been authorized. Petitioners were working for Mazar-e-Nazmi, and hence, respondent Nos. 2 and 3 trusted them and expressed their interest to purchase Medavala Building. It has been further averred that petitioner No.2 also showed letter dated Q/SDWJ/313 dated 11.9.2013, whereby permission to sell the aforesaid building had been granted by Waqf Board, and it was told to thecomplainant that original letter is lying with petitioner No.1 and coaccused Mohsin Bhai. Since the aforesaid property belonged to respondent Nos.2 and 3's Guru Syedna Sahab, hence, they agreed to purchase the said property. 5. It has been further alleged, that petitioners and co-accused Mohsin Bhai took Rs. 20,00,000/- cash as security against which receipt on the letter pad of Mazar-e-Nazmi was issued, and the respondent Nos.2 and 3 paid sale consideration of Rs.23,00,000-, via Cheques. Thus, the Sale deed dated 27.11.2015 was executed with regard to the aforesaid property. 5. It has been further alleged, that petitioners and co-accused Mohsin Bhai took Rs. 20,00,000/- cash as security against which receipt on the letter pad of Mazar-e-Nazmi was issued, and the respondent Nos.2 and 3 paid sale consideration of Rs.23,00,000-, via Cheques. Thus, the Sale deed dated 27.11.2015 was executed with regard to the aforesaid property. It is further alleged that the Petitioners and other accused persons did not give the original letter dated 11.9.2013, to the complainant on the pretext that there is only one original letter and it contains description of other properties as well and assured of giving its certified copy at a future date. It is alleged that thereafter, the respondent Nos. 2 and 3 made several attempts to procure the said letter but could not obtain the same. 6. It has been further alleged that respondent Nos.2 and 3 received summons from Waqf Tribunal regarding a Civil Suit filed by the Chief Executive Officer, Waqf Board seeking relief of declaration of the aforesaid sale deed dated 26.11.2015, as null and void as the same was alleged to be executed on the basis of forged Letter dated 11.9.2013,and only after receiving such information that the respondent Nos.2 and 3 learnt that they have been cheated, as they have been sold a property, which the petitioners were not entitled to sell. When the respondent Nos.2 and 3 confronted co-accused person, Khuzema and Ishaq with regard to the aforesaid facts they did not entertain them and on the contrary abused them by stating that nothing wrong has been done, and the petitioners and other co-accused persons denied taking the cash amount, and are further trying to evict theres pondent Nos.2 and 3 from the aforesaid house. 7. It has been further averred that respondent Nos.2 and 3 made complaint to S.P on 20.2.2018, against petitioners and other coaccused persons, but no action was taken. 8. In the aforesaid private complaint, the learned JMFC has recorded the statements of respondent Nos.2 and 3 as P.W-1 and P.W-2 under section 200 of Cr.P.C, and has passed impugned order 10.2.2022, taking cognizance against petitioners and other accused persons under sections 420, 467, 468 read with section 34 of IPC. Thus, being aggrieved of the same, the present petition is filed before this Court. Submissions of Petitioners: 9. Thus, being aggrieved of the same, the present petition is filed before this Court. Submissions of Petitioners: 9. Shri Surendra Singh, learned senior counsel for the petitioners has submitted that the petitioners have been falsely implicated in the case, despite the fact that they had entered into the sale transaction of the disputed property in good faith on behalf of Mazar-e-Nazmi, in whose account, the amount received from the complainants has already been credited. So far as the sum of Rs.20 lakh is concerned, which was received in cash as security, it has also been issued on the letterhead of Mazar-e-Nazmi and belongs to Mazar-e-Nazmi only. 10. Senior counsel has also drawn the attention of this Court to the plaint filed in the civil suit by the complainants in which there are no such allegations that the amount of Rs.20 lakh was kept by the petitioners in their own pocket and was misused in any manner. It is submitted that various disputed questions of facts are involved, all of which have the flavor of civil dispute only as on one hand a civil suit has been filed by the Waqf Board claiming that the letter dated 11.9.2013 is forged, which is seriously contested by the present petitioners, whereas the other suit has also been filed by the complainant himself for recovery of Rs.26,80,000/-, which was obtained by the petitioners on behalf of Mazar-e-Nazmi as security for the transaction. It is also submitted that Mazar-e-Nazmi is also a party in all these cases and if the civil suit filed by the Waqf Board is finally rejected, the petitioners would be vindicated in their contentions that the dispute was purely civil in nature, and even otherwise it is nobody’s case that the amount received from the complainant has been misappropriate by the petitioner Shabbir Palanpurwala himself, as it was credited in the account of Mazar-e-Nazmi only. 11. In support of his submissions, Shri Singh, has also relied upon a decision rendered by the Supreme Court in the case of Paramjeet Kaur v. State of Uttarakhand reported as 2013(11) SCC 673 paras 12 and 13 to submit that High Court is required to see whether a dispute is of civil nature, and has been given a cloak of criminal offence. Submissions of the Respondents Nos.2 and 3:- 12. Submissions of the Respondents Nos.2 and 3:- 12. On the other hand, the prayer is vehemently opposed by Shri Varun Tankha, counsel for the respondent Nos.2 and 3 and it is submitted that no case for interference is made out, as the Court has already taken cognizance of offence after due consideration of the statements of the complainant and on perusal of the documents filed on record. It is submitted that the complainants were the bona fide purchaser of the property and they had paid the amount in good faith that the sale is sanctioned by Waqf Board through its letter dated 11.9.2013, which, even according to the Waqf Board is forged and for which a civil suit has also been filed by the Waqf Board, but the benefit of which, cannot be given to the petitioners, who have used the aforesaid letter to enter into the transaction with the complainants.Thus, it is submitted that the petition being devoid of merits, is liable to be dismissed. 13. Shri Tankha has also submitted that a similar case has also been registered against the present petitioners at Crime No.40 of 2024 at Police Station – Economic Offence Wing, Ujjain, which also demonstrates that the petitioner are habitual offenders, thus, no case for interference is made out. 14. Counsel for the respondent No.1/State has also opposed the prayer. Conclusion : 15. Heard counsel for the parties and perused the record. 16. From the record, this Court finds that it is not disputed that the petitioners obtained an amount of Rs.23 lakh from the complainants in the account of Mazar-e-Nazmi. It is also not disputed by the petitioners herein that they had obtained a sum of Rs.20 lakh towards security from the respondent Nos.2 and 3 on the letter pad of Mazar-e-Nazmi. On perusal of the copy of the plaint filed by the complainants for recovery of the aforesaid amount of Rs.20 lakh along with interest, it is found that even the complainants’ contention in the said suit is that the amount has been given to Mazar-e-Nazmi, though received by the petitioner No.1 Shabbir Palanpurwala for Mazar-e-Nazmi. 17. On perusal of the copy of the plaint filed by the complainants for recovery of the aforesaid amount of Rs.20 lakh along with interest, it is found that even the complainants’ contention in the said suit is that the amount has been given to Mazar-e-Nazmi, though received by the petitioner No.1 Shabbir Palanpurwala for Mazar-e-Nazmi. 17. It is also found that Waqf Board has also filed a civil suit for declaration that the letter dated 11.9.2013,on the basis of which the sale deed has been executed by the petitioners is forged and, hence, the sale deed dated 26.11.2015 is also null and void. Admittedly, the this suit is still pending in which a counter claim has also been filed by the complainants that that the disputed land itself is not a Waqf property, hence, the civil suit is liable to be dismissed, and they have also denied in their counter-claim that the letter dated 11.9.2013 is forged. Thus, apparently, various disputed questions are still to be adjudicated upon by the civil Courts, an off shoot of which is stated to be the present offence. 18. At this juncture, it would be fruitful to refer to the decision rendered by the Supreme Court in the case of Paramjeet Kaur (supra) wherein the Supreme Court has held as under:- 12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court. 13. As we have already noted, here the dispute is essentially about the profit of the hotel business and its ownership. 13. As we have already noted, here the dispute is essentially about the profit of the hotel business and its ownership. The pending civil suit will take care of all those issues. The allegation that forged and fabricated documents are used by the appellant can also be dealt with in the said suit. Respondent 2's attempt to file similar complaint against the appellant having failed, he has filed the present complaint. The appellant has been acquitted in another case filed by Respondent 2 against him alleging offence under Section 406 IPC. Possession of the shop in question has also been handed over by the appellant to respondent 2. In such a situation, in our opinion, continuation of the pending criminal proceedings would be abuse of the process of law. The High Court was wrong in holding otherwise. (Emphasis Supplied) 19. Thus, when the facts of the case at hand are tested on the anvil of the decision rendered by the Supreme Court as aforesaid, this Court has no hesitation to hold that the dispute between the parties is of civil nature only, which has been given a cloak of criminal offence. This Court also finds that if the civil suit filed by the Waqf Board is dismissed, it would also demolish the very foundation of the private complaint which is based on the letter dated 11.9.2013, on the basis of which the sale deed has been executed in favour of the complainant. 20. In such circumstances, this Court is of the considered opinion that the continuation of the complaint in the present form, would only be a misuse of the process of the Court, and thus, liable to be quashed at this stage only. 21. Accordingly, the petition is hereby allowed and the order of cognizance dated 10.2.2022 passed in Case No.UNCR No.62 of 2020 as also the subsequent proceedings in the form of case No.RCT 217 of 2022 under sections 420, 467, 468 read with section 34 of IPC pending in the Court of J.M.F.C., Ujjain are hereby quashed, so far as they relate to present petitioners. 22. 22. However, it is also observed that the rights of the parties shall be governed by the Civil Courts and if it is found that the letter dated 11.9.2013,on the basis of which the sale deed has been executed was forged or otherwise invalid, the respondents’ right to pursue the criminal remedy shall stand restored. 23. With the aforesaid, the petition stands allowed and disposed of.